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Alan Weiss

13th March, 2020

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The father successfully appeals against parenting orders that allow the mother to relocate their child internationally.

The parenting orders provide that the child will live with the mother in Dubai. The father argues that the order does not give sufficient consideration to the promotion of a meaningful relationship with both parents; it does not address equal or substantial and significant time with both parents and it is not reasonably practicable.

Background to appeal

The child was born in Australia during an 18-month relationship between the parents.  The parties met at university where the mother was a student and the father one of her lecturers. Sometime after the birth of the child, the parties planned to get married in Dubai and then return to Australia. The mother and the child left for Dubai, but before the father joined them for the wedding, the relationship broke down. The mother remained in Dubai with the child.

The father wants the child to return to Australia. On the mother’s parenting proposal the father would spend time with the child four times a year in Dubai; on the father’s proposal, the child would spend more regular time with each of his parents, based on the proposal that the mother moves back to Australia. At the parenting hearing, the father offered to provide financial assistance to the mother to facilitate her return to Australia. The Federal Magistrate provided for the parties to have equal shared parental responsibility for the child. He then made parenting orders allowing the mother to relocate to Dubai with the child. The orders set out specific arrangements based on whether the father moves to Dubai or not. The father now appeals these orders.

The Appellant’s (the father) legal arguments

  • The Magistrate failed to adequately consider the child was spending equal time, or substantial and significant time with both parties when weighing up the disadvantages and advantages of the relocation/parenting proposals. After finding that the parties have equal shared parental responsibility for the child, the Magistrate failed to apply s 65DAA of the Family Law Act 1975 properly.
  • He failed to consider all the proposals and specifically the father’s proposal that he will assist the mother financially to re-establish herself in Australia.
  • He failed to consider the reasonable practicability of the arrangements and the limits on the father’s ability to travel to Dubai 4 times a year.
  • He erred when he held that being ordered to return to Australia would have an adverse impact on the mother’s capacity to parent.
  • He erred in finding that the father would not support the relationship between the mother and the child if the child lived in Australia and the mother in Dubai.
  • The Magistrate failed to give sufficient weight to the primary consideration of the child having a meaningful relationship with both parents.  He gave disproportionate weight to the mother’s wish to live in Dubai. He failed to consider how the child would form and maintain a meaningful relationship with the father if the child lived in Dubai.

The respondent’s (the mother) arguments

The mother resisted the appeal.

The Court’s findings

Before the Court considered the appeal, it noted that there was no evidence from an Independent Children’s Lawyer or a Family Consultant in this matter. It was not a point argued in the appeal, but the Court expressed it’s view that in matters involving a young child and international relocation, serious consideration should be given to appointing an expert and an Independent Children’s Lawyer to assist the court. The Federal Magistrate could have called for such expert evidence, but did not.

  • Regarding s 65DAA and the child spending equal or substantial and significant time with each parent. The Court confirmed that in deciding parenting orders, the best interest of the child must always be the paramount consideration. The presumption of equal shared parental responsibility is the starting point, if it is in the child’s best interest, and reasonably practicable.
  • The Magistrate failed to consider and weigh up all the advantages and disadvantages to the child of all the proposals. It seems that the Magistrate considered the advantages or disadvantages to the parties instead.
  • The Magistrate failed to properly consider the financial assistance the father offered to assist the mother to return to Australia and re-establish herself here.
  • He further failed to deal with the practicalities and limitations on the father’s ability to travel to Dubai 4 times a year.
  • There was no evidence to suggest that the mother’s parenting would be impaired if she moved back to Australia. At the very best that factor should have been weighed against the benefit of an arrangement that would allow the child to spend either equal or substantial and significant time with his father.

 

There was merit in this ground of appeal based on error by the Magistrate.

Regarding the meaningful relationship.

The Court should weigh up the evidence to decide how, if it is in the best interest of the child, the parenting orders can be structured to ensure that the child has a meaningful relationship with both parents.

  • It was noted that the absence of expert evidence might have caused the Federal Magistrate’s failure to adequately consider this primary consideration of what is in the child’s best interest.  There was no expert evidence on what is in the best interest of the child. No expert consideration of the benefit of the child having a meaningful relationship with both parents, and how this can be achieved.
  • This Court found that the Magistrate, when finding that the child did not have a significant emotional attachment to his father at the time of the hearing, failed to consider the limited time the father had spent with the child, due to the mother’s actions. 
  • He failed to consider the restrictions on the father’s ability to travel to Dubai.
  • He did not weigh up the detriment to the child of living in Dubai against the advantages to the child to live in Australia. The child would have the opportunity to form and maintain a meaningful relationship with both parents.
  • He did not consider how the mother’s proposal would provide the child with a meaningful relationship with both parents.
  • There was no evidence to come to the adverse finding that the father would not support the child spending time with the mother in Dubai if the child was to live with the father.
  • It was held that the Federal Magistrate failed to adequately consider whether the orders he made would enable the child to develop a meaningful relationship with the father.

There was merit in this ground of appeal.

Court determinations

  • The Appeal was allowed.
  • The Federal Magistrate’s orders were set aside.
  • The matter is remitted back to a Federal Magistrate for rehearing at first instance.

This article provides basic information only and is not a substitute for a professional opinion or legal advice . It is prudent to obtain legal advice from a Family Lawyer when contemplating a separation or soon after a relationship comes to an end. It is noted that publication of this judgment by this Court under the pseudonym McCall & Clarck has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975(Cth.)

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